This action was commenced by a complaint alleging certain damages to the plaintiff by virtue of a fall on the premises owned by defendant and leased in part to plaintiff's husband. The defendant answered, setting up an exculpatory clause as an affirmative defense, and then filed a motion for judgment on the pleadings. Thereafter a judgment was entered on the pleadings. This is an appeal from that order dismissing the complaint upon the affirmative defense of the defendant.

The exculpatory clause in the lease was as follows:

"8. Neither the Lessor nor his agents shall be liable for damages, to the Lessee or to any person claiming through Lessee (nor shall rent be abated) for injury to person or damage to or loss of property wherever located from any cause or for damage claimed for eviction actual or constructive; this provision includes particularly but not exclusively all claims arising from the building or any part thereof being or becoming out of repair including appurtenances, equipment, furnishings, fixtures or apparatus located in the demised premises or in the building or premises of which said demised premises are a part, or from any act or neglect of lessor or his agents or of any tenant or occupant of such building or of the premises of which such building is a part, or of the neighboring property."

The lease provided that the lessee was one E.S. Valentin, and the lease was signed by him and by him alone. It also provided, inter alia, that the premises were rented to Valentin as a private dwelling and that the premises:

"3. . . . shall not be occupied in whole or in part by any person other than Lessee, and Lessee shall not sublet the same or any part thereof, nor assign this lease, nor permit to take place by any act or default of himself or any person, any transfer by operation of Law of Lessee's interest created hereby; nor offer for lease or sublease the said premises, nor any portion thereof, without, in each case, the consent in writing of Lessor."

The lease was binding upon the executors, administrators, heirs and assigns of the lessor and lessee, and no one else. The exculpatory clause has been declared by the legislature of Illinois to be against public policy and void. This declaration dates from July 1, 1959. This case arose out of transactions before that date.

The question to be decided is well defined. The validity of the exculpatory clause involved is clear, since this case arose after the same clause was approved of in the O'Callaghan case (15 Ill.2d 436), and is not affected by the statutory declaration on April 13, 1959, that such clauses are against public policy and void [Ill. Rev. Stat. 1959, Chap. 80, sec. 15A]. The effect to be given the statute must be determined by the language used, and unless it is so clear that it will admit of no other construction, retroactive application will be denied. McQueeney v. Catholic Bishop of Chicago, 21 Ill. App.2d 553, 557.

Thus, the question presented is whether the wife of the lessee, not a signer of the lease, injured in the common stairway of the landlord's building, may recover for those injuries when her husband, the lessee, would be unable to do so because of a valid exculpatory clause contained in the lease.

The same rules are applicable to the construction of leases as are applicable to the construction of other contracts. 7039 Wentworth Ave. Bldg. Corp. v. Trough, 332 Ill. App. 635. Normally, one who has not expressed acceptance of the offer by signing the written contract, would not be bound by its terms. W.T. Grant Co. v. Jaeger, 224 Ill. App. 538. Furthermore, it has been held that even one who signed a lease, but whose name did not appear in the body thereof, would not be held subject to its terms. Fuchs v. Block, 156 Ill. App. 482.

[5-7] Exculpatory clauses are to be strictly construed against the party they benefit. Jackson v. First Nat. Bank of Lake Forest, 415 Ill. 453. A lease containing such clause must also be strictly construed against the lessor. Their function is to relieve the landlord of liability for breach of his normal obligations as a landowner. Only those persons willing to forgo, for some reason, the protection offered by the normal rules of negligence law may be bound to the waiver of those rights. This willingness may not be implied but must be express. The exculpatory clause has been upheld on the basis that it is an exercise of the party's freedom of contract. O'Callaghan v. Waller & Beckwith Realty Co., 15 Ill.2d 436. However, where the person sought to be held to the clause has not signed it, the negotiation as a matter of offer and acceptance necessary to an exercise of freedom of contract is missing. Simmons v. Columbus Venetian Stevens Bldgs., Inc., 20 Ill. App.2d 1, 31.

To apply the doctrine of freedom of contract as a means of sustaining the landlord's exculpation to one who has not signed the lease is a tortured and inequitable extension of a theory already strained to its limits in its application to the signer. Any justification for such application would have to flow from the relationship between the husband and wife which could make both ...

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